PUBLICATION:
Edmonton Journal
DATE:
2003.10.15
EDITION:
Final
SECTION: Ideas
PAGE:
A19
COLUMN:
Lorne Gunter
BYLINE:
Lorne Gunter
SOURCE:
The Edmonton Journal
--------------------------------------------------------------------------------
Property
rights are being eroded by the charter, court decisions: Recent ruling allows
expropriation of interest owed to veterans, widows
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Both
of the following statements were made within the past three months. One is from
Canada, the other from Communist China. Which is which?
A)
"The government has the right to expropriate property, even without
compensation, if it has made its intention clear."
B)
"We should protect all kinds of property ownership -- including private
ownership."
Of
course, this is a trick question.
The
first quotation is from the Supreme Court of Canada's July decision in the
Arthurson vs. Canada case, in which the justices agreed with the federal
government that Ottawa could rob mentally disabled war veterans and their widows
of hundreds of millions of dollars they were owed in interest on their pensions
simply by passing an expropriation law that was "clear and
unambiguous."
In
essence, due process has been served, the court ruled, if Ottawa merely makes
its intent to rob emphatic. This is the equivalent of arguing that the
difference between rape and lovemaking is the rapist's clear declaration
beforehand that his actions will constitute making love.
In
fairness to the court, it has been a developing precept in Canadian law since at
least the 1920s that expropriation without compensation is permissible provided
the expropriating government includes in its expropriation legislation a clause
declaring its unwillingness to pay compensation to its victims. It may be
abhorrent and have nothing whatever to do with justice, but the court's
Arthurson decision really was just the logical endpoint of a legal evolution
(perversion?) begun nearly 80 years ago.
The
second quotation was uttered this weekend by Chinese President Hu Jintao during
the 16th gathering of the Central Committee of the Communist Party of China.
Although that gathering concluded Tuesday without a formal declaration that
private property rights have been added to China's constitution -- the Central
Committee's communique referred only to an unspecified "constitutional
change" -- it is widely believed that China's most senior and powerful
Communists voted to reverse their 82-year-old declaration that state ownership
of all property was "inviolable."
If,
indeed, the businesses and farm plots of China's entrepreneurs and landowners
are now constitutionally protected, the Chinese have one up on Canadian
entrepreneurs and landowners. In Canada, there are no constitutional safeguards
for private property, and increasingly few common law protections, either.
The
Chinese are not more free than we are, nor would I prefer their political and
justice systems to ours. Canadian dissidents do not disappear in the middle of
the night; their Chinese counterparts still do. And the Chinese constitution
already contains dozens of human rights not honoured by the nation's rulers.
Even if that constitution now also claims to protect private property, it
remains to be seen whether that protection has any real-world force.
Still,
intellectually, the Chinese are moving in the right direction; we are not. China
is seeking to expand its private sphere. Politicians and technocrats here are
constantly looking for ways to contract ours.
Property
rights are disdained by Canada's ruling establishment, both in Parliament and
the courts, at the municipal and provincial levels almost as much as at the
federal. Property rights are an impediment to all the do-gooding our politicians
are up to. How can they be expected to protect the environment, ensure worker
safety, control guns, regulate healthy behaviour, redistribute incomes
"fairly," advance human rights in hiring and renting, and so on, and
so on, and so on, if Canadians have the right to own and enjoy their property as
Canadians see fit?
Sure,
sure, Canadians can own property, but they have to permit their betters -- i.e.
the government, lobbyists, editorialists, special interests, etc. -- to have
first say on what they may erect and produce on their land, what conditions and
safety equipment must exist there, who they must associate with there, and what
is to be done with the proceeds they earn there.
After
that, of course, the property is theirs to use as they please -- that is, until
their betters decide to expropriate it without compensation. Otherwise, the
property is theirs, freehold.
In
1999, in deciding who owned the crops produced on Canadians' farms -- the farmer
or Ottawa -- the Manitoba Court of Appeal decided in Ottawa's favour and
decreed: "The right to 'enjoyment of property' is not a constitutionally
protected, fundamental part of Canadian society."
If
property rights were in place and enforced, why that might lead to -- gasp --
limited government. And since so many Canadians are convinced that government
represents unlimited good ... well, the thought of limiting goodness is just too
much to bear.
During
the 1980 and 1981 constitutional debates on repatriation and the Charter of
Rights and Freedoms, protection of property rights was discussed by Prime
Minister Pierre Trudeau and the premiers. According to former Alberta premier
Peter Lougheed in an interview with the editors of Alberta in the Twentieth
Century, "this was a very short, 10-minute bargaining session."
Property rights were on and off the table in the blink of an eye because the
provinces objected to the charter limiting their right to expropriate.
In China, the Communists are erecting barriers to unbridled state action. They may not be strong barriers. We don't know yet. But at least they are erecting barriers. Here in Canada, in the name of freedom and fairness, we are intent on tearing them down.
lgunter@thejournal.canwest.com
BREITKREUZ ON PROPERTY RIGHTS
http://www.cssa-cila.org/garryb/property.htm